Democratic National Committee chairman Tom Perez made a curious point in a Tuesday night speech when he declared “the Electoral College is not a creation of the Constitution.” Given the focus of the DNC chief on elections, the misunderstanding of the origin of the electoral college is a bit like a chief of police not knowing that warrants are required by the Fourth Amendment. To make matters worse, Perez made his statement at the Indiana University Law School. Just for the record, Article II of the Constitution states “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

Perez added “It doesn’t have to be there.” That last point is a bit hard to track. I have been a long critic of the electoral college, but the only way to get it out of “there” would be a constitutional amendment.

127 thoughts on “Perez: “The Electoral College Is Not A Creation Of The Constitution””

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Read through a number of thoughtful comments. On reflection, it seems some in politics are thoroughly unaware of Article II of the Constitution. That said, is it any wonder why political parties have jerked around truth for decades? Are politicians, from both sides of the political aisle, not professional practitioners, collectively, working to advance party loyalty? Thus, the question. Is it not true the Electoral College stands forcefully as a barrier & check against partisan politics? In short, is the Electoral College not a bulwark & mainstay of our republic?

The majority of Americans obviously realize this country’s government official’s corruption, scandals and blatant disregard for the rule of law at the federal, state, and local levels and is why Donald Trump has become our President. The people are fed up with it, and I’m going to reveal to you something that you may want to check out for yourself, it could help you immensely especially if you are in bondage to a government agency or office, and if you are a Christian, pay especially close attention. Do you wish to keep a republican form of government? Our country’s problem lies with elected officials who do not “preserve, protect, and defend” law in accordance with their Oath of Office, whether out of sheer ignorance or flat out disregard to serve their own agenda. A lot of elected officials don’t know that preserving, protecting, and defending the USA and state laws also includes the Organic Laws of the United States found in the United States Statutes at Large Volume 18, Part 1. This Statute codified the documents contained within it as “The Organic Laws of the United States.” Within this Statute within the Declaration of Independence the forefathers of the United States of America established this fact: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” This was written to establish that rights come from God and not the government. By law, an elected official must take the Oath of Office in order to hold that office. Here in Texas, an elected official must take the Oath in accordance with Article XVI, Section 1, of the Texas Constitution. Also in Texas, elected officials cannot hold any office without acknowledging the existence of a “Supreme Being” in accordance with Article 1, Bill of Rights, Section 4, Texas Constitution. This acknowledgement of coarse can only be the Almighty God of the Holy Bible and whose acknowledgment by the elected official’s Oath of Office ends with “so help me God.” I don’t know about you, but I as a Christian expect an elected Texas official to “preserve, protect, and defend the Constitution and laws of the United States and of this State”, and again, this includes the United States Statutes at Large Volume 18, Part 1. Keep up with me now. At all times I stand upon my rights as one of the people of Texas and a beneficiary of the Texas Constitution. Article 1 Bill of Rights, Section 2 prescribes in part that, “All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit….” Based on said Article and Section, the Texas Constitution is a trust indenture. The people of Texas are the beneficiaries of that trust indenture and are entitled to whatever benefits the Texas Constitution provides. One of those benefits of the Texas Constitution is “DIVISION OF POWERS” (separation of powers-legislative, executive, and judicial) declared at Article 2, Section 1 and provides that “The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.” There is no administrative law branch within Article 2. Administrative law combines all three fundamental powers of government under a single authority. See American Jurisprudence 2nd. Administrative law unifies–rather than divides/separates–the three fundamental powers of government. Administrative law violates the principle of “division of powers.” By unifying the three fundamental powers of government, mandatory administrative law injures the people by depriving us of one or more of the benefits of the Texas Constitution, including but not limited to “division of powers” and substantive due process. As one of the people of Texas, I do not consent to be subject to administrative law and/or administrative process. One example of administrative law and/or process would be probation.

In the words of one of our founding fathers, Samuel Adams, “The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but only to have the law of nature for his rule.” This is why the separation of powers was prescribed into our organic law. This is also why we have the judicial branch of government with courts that sit a jury to determine if a defendant is guilty of a crime committed, and if so, assesses time for punishment to be served in a jail or prison. Anything else after serving one’s time is conflicting and a violation of one’s right to liberty and separation of powers under the “Organic Laws of the United States” found in the United States Statutes at Large Volume 18, Part 1. What I’m saying is once you serve out your time you then have a clean slate so to speak, liberty is restored, and you get a second chance to prove yourself and become a productive citizen. Administrative processes are set up by legislative acts. As for me, I do not consent to be subject to administrative law and/or administrative process when my rights to life, liberty, and pursuit of happiness, under organic law, are unalienable and given by God, and which an elected official is to “preserve, protect, and defend” and that the Texas Constitution affords us the benefit of “Division of Powers.” Are you getting the picture? This is how we the people keep a republican form of government, which by the way, is also guaranteed in accordance to Article 1, Bill of Rights, Sec. 2, Texas Constitution. I find it very hypocritical of elected Texas officials who have acknowledged God under their Oath of Office and do not “preserve, protect, and defend” established organic law. For an elected official to not uphold his Oath makes him a liar and a denier of God. By taking the Oath, officials are to know the truth of what they have undertaken. God’s word says in John 2:21-22 “I have not written unto you because ye know not the truth, but because ye know it, and that no lie is of the truth. Who is a liar but he that denieth that Jesus is the Christ? He is antichrist, that denieth the Father and the Son.” An elected official who violates your rights, privileges, and/or benefits, especially the guaranteed right to life, liberty, and the pursuit of happiness, and yes the benefit of separation of powers, can be sued in his official and personal capacity. Also too, any other elected official that has knowledge of such violations to ones rights, privileges, or benefits and who does nothing to right the wrong is also liable and can be included in the lawsuit. Among other things, this potential lawsuit would be filed for violations of your liberty and religious belief in God the Almighty who gave us that unalienable right and which fact was established by our forefathers in the Declaration of Independence and contained in the Organic Laws of the United States as stated above, violation of our benefit of Division of Powers at Article 2 Texas Constitution, Abuse of Official Capacity, Official Oppression, fraud etc. It’s time to wake up people! Do your homework and research. And a little advice from experience, do not trust an attorney or lawyer, not to say there are no good ones, I just haven‘t come across one yet that will defend these principles as I have revealed to you here, hmmm I wonder why? May God’s blessings be upon each and every one of you who reads and understands this.

Funny how many people are just so certain that their interpretation of the constitution is correct and that everyone who disagrees with them is corrupt and running roughshod over it. The fact that it’s not that infrequent that two conservatives on the supreme and circuit court will disagree doesn’t set a light off in their head. Nor does that fact that the US Constitution conspicuously does not mention god put the idea in their head that the Founders wanted to protect us from religious fanatics.

If David B’s statement should be a call to action, it should be to institute mandatory critical thinking classes as well as constitutional law courses into schools, so people don’t end up as angry, dogmatic ignoramuses, such as poor David here…

Article II Section 1 of the Constitution as amended (12th) by constitutional procedure. And Perez-Castro makes a statement like that? He has got to be progressively regressive and given to typically stupid comments. 17 seconds Wikpedia with sub references. Unless. were you quoting the constitution of another country Comrade?

Other than the useless rant of the resident foreigner this subject has no legs, no arms, no body and no reason to exist.

Unassimilable, parasitic, foreign hyphenates can be dangerous to your health.

They may even attempt to “fundamentally transform” your country.

Ahh, the ramifications of importing the population because the birthrate is in a “death spiral.”
________________________________________________

Alexander Hamilton –

“The influx of foreigners must, therefore, tend to produce a heterogeneous compound; to change and corrupt the national spirit; to complicate and confound public opinion; to introduce foreign propensities. In the composition of society, the harmony of the ingredients is all-important, and whatever tends to a discordant intermixture must have an injurious tendency.

The founders created the Electoral College, but 48 states eventually enacted state winner-take-all laws.

Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in Article II, Section 1
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.

In 1789, in the nation’s first election, a majority of the states appointed their presidential electors by appointment by the legislature or by the governor and his cabinet, the people had no vote for President in most states, and in states where there was a popular vote, only men who owned a substantial amount of property could vote, and only three states used the state-by-state winner-take-all method to award electoral votes.

The current winner-take-all method of awarding electoral votes is not in the U.S. Constitution. It was not debated at the Constitutional Convention. It is not mentioned in the Federalist Papers. It was not the Founders’ choice. It was used by only three states in 1789, and all three of them repealed it by 1800. It is not entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all method. The winner-take-all method of awarding electoral votes became dominant only in the 1830s, when most of the Founders had been dead for decades, after the states adopted it, one-by-one, in order to maximize the power of the party in power in each state.

The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state’s electoral votes.

States have the responsibility and constitutional power to make all of their voters relevant in every presidential election and beyond. Now, 38 states, of all sizes, and their voters, because they vote predictably, are politically irrelevant in presidential elections.

The National Popular Vote bill is 61% of the way to guaranteeing the majority of Electoral College votes and the presidency in 2020 to the candidate who receives the most popular votes in the country, by changing state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.

All voters would be valued equally in presidential elections, no matter where they live.

I never heard any complaints when Democrats won! If we had elected by popular vote what a mess we would be in! Hillary investigated by Congress and DOJ? It was hard enough when Obama got reelected after Benghazi and the IRS mess (where Obama said he knew nothing about it and later told Bill O’Reilly an investigation found not a “smidgen” of evidence). Obama tried to change our culture to the socialist philosophy. We certainly got close. Who knows where we would be if Bernie had been the Democratic candidate, probably continuing the march to Socialism!

In Gallup polls since they started asking in 1944 until this election, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (not mentioned in the U.S. Constitution, but later enacted by 48 states) (with about 70% opposed and about 10% undecided).

Support for a national popular vote for President has been strong among Republicans, Democrats, and Independent voters, as well as every demographic group in every state surveyed. In the 41 red, blue, and purple states surveyed, overall support has been in the 67-81% range – in rural states, in small states, in Southern and border states, in big states, and in other states polled.

The National Popular Vote bill was approved in 2016 by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).
Since 2006, the bill has passed 35 state legislative chambers in 23 rural, small, medium, large, Democratic, Republican and purple states with 261 electoral votes, including one house in Arizona (11), Arkansas (6), Connecticut (7), Delaware (3), The District of Columbia, Maine (4), Michigan (16), Nevada (6), North Carolina (15), Oklahoma (7), and Oregon (7), and both houses in California, Colorado (9), Hawaii, Illinois, New Jersey, Maryland, Massachusetts, New Mexico (5), New York, Rhode Island, Vermont, and Washington.

Newt Gingrich summarized his support for the National Popular Vote bill by saying: “No one should become president of the United States without speaking to the needs and hopes of Americans in all 50 states. … America would be better served with a presidential election process that treated citizens across the country equally. The National Popular Vote bill accomplishes this in a manner consistent with the Constitution and with our fundamental democratic principles.”

Trump, October 11, 2017, on interview with Sean Hannity
“I would rather have the popular vote.”

Trump, November 13, 2016, on “60 Minutes”
“ I would rather see it, where you went with simple votes. You know, you get 100 million votes, and somebody else gets 90 million votes, and you win. There’s a reason for doing this. Because it brings all the states into play.”

In 2012, the night Romney lost, Trump tweeted.
“The phoney electoral college made a laughing stock out of our nation. . . . The electoral college is a disaster for a democracy.”

In 1969, The U.S. House of Representatives voted for a national popular vote by a 338–70 margin.

Recent and past presidential candidates who supported direct election of the President in the form of a constitutional amendment, before the National Popular Vote bill was introduced: George H.W. Bush (R-TX-1969), Bob Dole (R-KS-1969), Gerald Ford (R-MI-1969), Richard Nixon (R-CA-1969), Michael Dukakis (D-MA), Jimmy Carter (D-GA-1977), and Hillary Clinton (D-NY-2001).

Recent and past presidential candidates with a public record of support, before November 2016, for the National Popular Vote bill that would guarantee the majority of Electoral College votes and the presidency to the candidate with the most national popular votes: Bob Barr (Libertarian- GA), U.S. House Speaker Newt Gingrich (R–GA), Congressman Tom Tancredo (R-CO), and Senator Fred Thompson (R–TN), Senator and Vice President Al Gore (D-TN), Ralph Nader, Governor Martin O’Malley (D-MD), Jill Stein (Green), Senator Birch Bayh (D-IN), Senator and Governor Lincoln Chafee (R-I-D, -RI), Governor and former Democratic National Committee Chair Howard Dean (D–VT), Congressmen John Anderson (R, I –ILL).

We would end up being a shell of a republic. We can see what the impact of the popular vote had on the power (rights) of the states in the federal legislature with the 17th amendment. Instead of the House being the voice of the people and the Senate being the voice of the states, we effectively have a 535 seat House of Representatives with 100 of them given 6 year terms. Given the measurable civics ignorance of the voting public, making the choice for the Executive by popular vote would turn us into the majority rule democracy the framers warned us about.

We would end up being a shell of a republic. We can see what the impact of the popular vote had on the power (rights) of the states in the federal legislature with the 17th amendment. I

It had one effect: it changed the composition of the Senate to one of people who made connections in state legislatures to one of people adept at fundraising and publicity. That’s not what’s behind excess centralization.

Not much turns on the persistence of the electoral college but one thing: corruption in elections administration remains contained within the boundaries of the state where it occurs. Absent the electoral college, we’d have to have a national bureaucracy to supervise federal elections if we don’t wish to concede to California a franchise to steal as many votes as they care to. We really do not excel at that sort of thing. And, of course, there’s collective ill-wisdom. Many of the initiatives that arose from the 2000 election were irrelevant or exacerbated problems.

it changed the composition of the Senate to one of people who made connections in state legislatures to one of people adept at fundraising and publicity.

I’m not sure if it was Tip O’neill who said: All politics is local. For the average citizen (resident) of this country, the only politics that they are willing to get involved in (if at all) occurs locally. The further removed politics happens to be from the voter the further removed their attention becomes. When Congress has an approval rate less than 20% and the incumbents succeed at a rate of about 90%, then the popular vote is the worst check on government. Electing Senators via a popular vote hasn’t ended corruption, it just centralized it with far more coordination.

The bottom line is the American people have proven they are unqualified to make a vote for anything other than their own self-interests. Even then, they are grubered into thinking that’s what they are doing. There is no better example for rejecting a national popular vote bill than Hillary Clinton and the Progressive Cartel.

There was a time when they were informed enough to go to war and establish this republic. Perhaps all of this is part of the normal life-cycle. Maybe opioids, tobacco and alcohol are not the worst addictions we face. A republic if you can keep it? More like a government if you can avoid being addicted to it.

Olly – when we went to war and created a republic we actually didn’t vote to go to war, it was foisted upon us. And estimates are that about 1/3 of the population supported the rebels, 1/3 supported the Tories and the rest just wanted to be left alone. The voting, what there was of it, was by state legislatures who agreed to support the rebels. Some legislatures had been shut down by the crown. It was the Committee of Correspondence that kept the whole thing together at the beginning, informing the colonies of what was happening in Boston. I have a personal blank on how we moved from that to the Articles of Confederation or how they moved to Philadelphia.

The Continental Congress commissioned John Dickinson to write the Articles in 1777. It took four years for the requisite # of states to ratify them. I think there were territorial disputes that had to be settled.

Sure. However Great Britain’s policy of salutary neglect conditioned the colonists towards liberty. That was at least 3 generations experiencing what life could be like without the oppressive control by parliament. The acts by Great Britain after the Seven Years War justified the cause for independence. Today’s population has been condition in the exact opposite direction over the last 100 years. That’s supposed to be progress?

s e – just about everybody on your list, except Trump and Hillary, are has-beens. I am a firm believer in the Electoral College. There is no way it is replaced without a Constitutional Amendment or Constitutional Convention (which scares the hell out of everybody).

Which was then ratified by nine states in the space of 8 months, 18th century transportation and communications technology notwithstanding. Of the other four states, it was a close shave in one or two, the bandwagon effect carried the third, and the fourth ratified when the alternative was attempting to go it alone. When the idea was presented to the political grandees of the day, they grabbed it.

Why? There’s a distinction between electoral votes as a tabulation convention and a corps of party wheelhorses having a ceremonial conclave in state capitols in December.

The salutary aspects of the electoral college can be had by treating it as a tabulation convention and eliminating the office of elector.

1. Assign each state and each abiding territory a quantum of electoral votes equal to the citizen population thereof.

2. Determine the median number of electoral votes per territorial unit.

3. Divide the total number in each state by this median number. The quotient will consist of an integer and a decimal. Where the integer is less than two, the electoral votes will be distributed according to a statewide ballot. Where it is two or higher, the state will be divided into constituencies and contests will be held within each constituency to distribute the electoral votes therein. Each such state would be divisible into a minimum of two constituencies and a maximum of what ever the integer noted above is. The Congress could delineate criteria for drawing these constituencies and the state legislatures could draw the actual boundaries. The states could alter these boundaries, but any alterations would be tolled for 10 years.

4. Make use in federal elections of ordinal balloting with tabulation according to the conventions of the alternate vote.

All makes perfect sense, except only one thing: the future belongs to the political party that sells out our country by bringing in the most illegal immigrants to sway the elections. Exactly how does that square with “All voters would be valued equally”? My vote gets negated when an illegal alien crosses the border.

Thank you for your insights regarding the Electoral College. It seems progressives would do well to visit Professor Turley’s site more often to get a proper education. On the other hand, strategizing, egregious, liberals seem to have little interest in a proper Constitutional education.

Not the least bit surprised Perez harbors this errant view. I think it’s called willful blindness, a malady affecting the majority of authoritarian on the left–and some on the right as well–who view the Constitution as a nuisance, a useless vestige of the past. .And we wonder why our constitutional republic is now but a pipe dream. Also, thank God for the electoral college which mitigates the political damage of large Liberal metropolitan areas on our elections Without the electoral college it might now be the mafia queen herself, Hillary, sitting in the Oval Office. Yipes! The Founders were, indeed, wise men.

Voters in the biggest cities in the US are almost exactly balanced out by rural areas in terms of population and partisan composition.

16% of the U.S. population lives outside the nation’s Metropolitan Statistical Areas. Rural America has voted 60% Republican. None of the 10 most rural states matter now.

16% of the U.S. population lives in the top 100 cities. They voted 63% Democratic in 2004.
The population of the top 50 cities (going as far down as Arlington, TX) is only 15% of the population of the United States.

The rest of the U.S., in suburbs, divide almost exactly equally between Republicans and Democrats.

However…….the 26 least populated States have the power to elect 51 Senators and thus combine their separate powers into one. Thus under our system the majority cannot harm the minority and vice versa using the House of Representatives as an example. Just about 40% of the population have that power should they choose to use it.

In 2012, under the current state-by-state winner-take-all system (not mentioned in the U.S. Constitution, but later enacted by 48 states), voters in just 60 counties and DC could have elected the president in 2012 – even though they represented just 26.3% of voters.

Now, a presidential candidate could lose despite winning 78%+ of the popular vote and 39 states.

With the current state-by-state winner-take-all system of awarding electoral votes (not mentioned in the U.S. Constitution, but later enacted by 48 states), it could only take winning a bare plurality of popular votes in only the 11 most populous states, containing 56% of the population of the United States, for a candidate to win the Presidency with less than 22% of the nation’s votes!

The National Popular Vote bill in 2017 passed the New Mexico Senate and Oregon House.
It was approved in 2016 by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).
Since 2006, the bill has passed 35 state legislative chambers in 23 rural, small, medium, large, Democratic, Republican and purple states with 261 electoral votes, including one house in Arizona (11), Arkansas (6), Maine (4), Michigan (16), Nevada (6), North Carolina (15), and Oklahoma (7), and both houses in Colorado (9) and New Mexico (5).
The bill has been enacted by 11 small, medium, and large jurisdictions with 165 electoral votes – 61% of the way to guaranteeing the majority of Electoral College votes and the presidency to the candidate with the most national popular votes.

It changes state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.

IF it’s then brought before Congress and turned into an Amendment. All those States had to do was change their delegates but… they did not. Can’t have it both ways. 700 plus times it’s been brought before Congress and never made it out of Congress. With Feinstein that adds another failed attempt as it never made it anywhere. Pretty soon it will vie with Oregons continual hunt for in state sales tax for greatest numbeer of defeats.

The bill would take effect when enacted by states with a majority of the electoral votes—270 of 538.
All of the presidential electors from the enacting states will be supporters of the presidential candidate receiving the most popular votes among all 50 states (and DC)—thereby guaranteeing that candidate with an Electoral College majority.

Newt Gingrich summarized his support for the National Popular Vote bill by saying: “No one should become president of the United States without speaking to the needs and hopes of Americans in all 50 states. … America would be better served with a presidential election process that treated citizens across the country equally. The National Popular Vote bill accomplishes this in a manner consistent with the Constitution and with our fundamental democratic principles.”

Trump, October 11, 2017, on interview with Sean Hannity
“I would rather have the popular vote.”

Trump, November 13, 2016, on “60 Minutes”
“ I would rather see it, where you went with simple votes. You know, you get 100 million votes, and somebody else gets 90 million votes, and you win. There’s a reason for doing this. Because it brings all the states into play.”

In 2012, the night Romney lost, Trump tweeted.
“The phoney electoral college made a laughing stock out of our nation. . . . The electoral college is a disaster for a democracy.”

In 1969, The U.S. House of Representatives voted for a national popular vote by a 338–70 margin.

Recent and past presidential candidates who supported direct election of the President in the form of a constitutional amendment, before the National Popular Vote bill was introduced: George H.W. Bush (R-TX-1969), Bob Dole (R-KS-1969), Gerald Ford (R-MI-1969), Richard Nixon (R-CA-1969),

Recent and past presidential candidates with a public record of support, before November 2016, for the National Popular Vote bill that would guarantee the majority of Electoral College votes and the presidency to the candidate with the most national popular votes: Bob Barr (Libertarian- GA), U.S. House Speaker Newt Gingrich (R–GA), Congressman Tom Tancredo (R-CO), and Senator Fred Thompson (R–TN),

In Gallup polls since they started asking in 1944 until this election, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (not mentioned in the U.S. Constitution, but later enacted by 48 states) (with about 70% opposed and about 10% undecided).

Support for a national popular vote for President has been strong among Republicans, Democrats, and Independent voters, as well as every demographic group in every state surveyed. In the 41 red, blue, and purple states surveyed, overall support has been in the 67-81% range – in rural states, in small states, in Southern and border states, in big states, and in other states polled.

Most Americans don’t ultimately care whether their presidential candidate wins or loses in their state or district. Voters want to know, that no matter where they live, even if they were on the losing side, their vote actually was equally counted and mattered to their candidate. Most Americans think it is wrong that the candidate with the most popular votes can lose. We don’t allow this in any other election in our representative republic.

The founders created the Electoral College, but 48 states eventually enacted state winner-take-all laws.

Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in Article II, Section 1
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.

In 1789, in the nation’s first election, a majority of the states appointed their presidential electors by appointment by the legislature or by the governor and his cabinet, the people had no vote for President in most states, and in states where there was a popular vote, only men who owned a substantial amount of property could vote, and only three states used the state-by-state winner-take-all method to award electoral votes.

The current winner-take-all method of awarding electoral votes is not in the U.S. Constitution. It was not debated at the Constitutional Convention. It is not mentioned in the Federalist Papers. It was not the Founders’ choice. It was used by only three states in 1789, and all three of them repealed it by 1800. It is not entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all method. The winner-take-all method of awarding electoral votes became dominant only in the 1830s, when most of the Founders had been dead for decades, after the states adopted it, one-by-one, in order to maximize the power of the party in power in each state.

The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state’s electoral votes.

States have the responsibility and constitutional power to make all of their voters relevant in every presidential election and beyond. Now, 38 states, of all sizes, and their voters, because they vote predictably, are politically irrelevant in presidential elections.

Gary T – actually that is not true. There have been some studies that show that some students are great at algebra but terrible at geometry, so terrible at algebra but great at geometry and some great at both. The difference is their ability in the English classroom. The better you are at English literature, the worse you are at algebra.

Personally, if I had to take algebra in college, I would still be there. 😉 However, I made sure my program of study allowed me to avoid it. I did take a lot of literature though.

In the past, Perez has admitted that law school was appealing to him because he was bad at math. It appears you can get through Harvard Law School without learning much constitutional law, either, perhaps because Harvard faculty fancy the purpose of constitutional law is to manufacture excuses for the appellate judiciary to insist that the professors’ preferred policies are constitutionally required.